Citation Nr: 9907765
Decision Date: 03/23/99 Archive Date: 03/31/99
DOCKET NO. 98-03 343 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to an increased rating for post traumatic stress
disorder (PTSD), currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
S.M. Cieplak, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1966 to July
1969.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from an October 1997 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Muskogee, Oklahoma, which granted entitlement to service
connection for PTSD with an assignment of a 10 percent
evaluation. By a rating action of September 1998, the
evaluation was increased to 30 percent effective from the
date of the claim.
A claim for increased (compensable) evaluation for a gunshot
wound of the left calf was denied in the October 1997 rating.
However, the record does not show that a timely notice of
disagreement being received to initiate an appeal on the
issue. 38 C.F.R. § 20.201, 20.302 (1998). Accordingly, that
issue is not in appellate status.
The veteran claimed entitlement to nonservice connected
pension, which claim, while initially denied by a rating of
January 1998, was subsequently granted by a September 1998
rating. Inasmuch as that latter determination represents a
full grant of benefits, entitlement to pension is not
appealable.
The Board is obligated to seek out all issues that are
reasonably raised from a liberal reading of documents or
testimony of record and to identify all potential theories of
entitlement to a benefit under the laws and regulations. The
Board also notes that in the veteran's November 1997
statement, he asserts an additional claim of entitlement to
service connection for residuals of a shoulder dislocation.
Because that issue is not before the Board on this appeal, it
is hereby referred to the RO for appropriate action.
REMAND
When a claimant is awarded service connection for a
disability and subsequently appeals the RO's initial
assignment of a rating for that disability, the claim
continues to be well-grounded as long as the rating schedule
provides for a higher rating and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Accordingly,
the increased evaluation issue on appeal is well-grounded.
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter, "Court") has held that fulfillment
of the VA's duty to assist includes the procurement and
consideration of any clinical data of which the VA has notice
even when the appellant does not specifically request that
such records be procured. Ivey v. Derwinski, 2 Vet. App.
320, 323 (1992).
At his VA psychiatric examination in September 1997, the
veteran reported receiving treatment from a psychiatrist in
California in 1993. On his substantive appeal received in
February 1998 and in addition to reporting VA mental health
treatment in 1993, he additionally reported receiving
treatment from VA psychiatrists in 1979 and 1997. However,
there is no indication that such treatment records were
sought. Consequently, further assistance to the veteran is
required to comply with the duty to assist, as mandated by
38 U.S.C.A. § 5107(a).
In light of the above, the Board believes that additional
development is required prior to further appellate review.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for a mental
health condition since 1979, including,
but not limited to mental health
treatment records from the VA mental
health unit in Muskogee, Oklahoma. After
securing any necessary release, the RO
should obtain these records (not already
in the claims folder) and associate them
with his claims folder in order to give
the veteran every consideration with
respect to the present appeal and to
ensure that the VA has met its duty to
assist the veteran in developing the
facts pertinent to the claim. If the
search for such records have negative
results, documentation to that effect
from each of such contacted entities
should be placed in the claim file.
2. Thereafter, the claims file should be
referred to the same VA physician who
conducted the most recent psychiatric
examination of the veteran. The examiner
is requested to comment whether any
modification to his examination report
would be warranted, particularly with
reference to the GAF score, and, if so,
to provide an appropriate supplement.
After undertaking any development deemed appropriate in
addition to that specified above, the RO should review the
claims folder. Thereafter, the RO should readjudicate the
issue of entitlement to entitlement to an increased rating
for PTSD. If the determination remains adverse to the
veteran, he and his representative should be furnished a
supplemental statement of the case and an opportunity to
respond thereto. Thereafter, the case should be returned to
the Board for further appellate consideration, if in order.
The Board intimates no opinion, either favorable or
unfavorable, as to the ultimate disposition of this case. No
action is required of the veteran until he is notified by the
RO.
BRUCE KANNEE
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999).
This remand is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).
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